'Family Affairs' interview with Sir Nicholas Wall

Full interview first published in FLBA's [2010] Family Affairs 49, summer edn. Extracts reproduced with kind permission.

Sir Nicholas Wall became President of the Family Division earlier this year despite a well-reported hiccough from the then Lord Chancellor, Jack Straw. It was a popular appointment among the profession, who felt they had got their man.

Sir Nicholas was educated at Dulwich College and won a scholarship to Trinity College, Cambridge, where he read law and became president of the Union. Called to the Bar by Grays Inn in 1969, he enjoyed a successful family practice in Mitre Court (now Hare Court) and rapidly made his way up the judicial ladder, being appointed to the High Court bench in 1993 at the age of 48. He was appointed a Lord Justice in 2004.

Known for an independence of mind and compassionate judgments, the new President made a rallying speech to Cumberland Lodge delegates this year, reminding us how far the Family Bar had come during his own professional lifetime, how good the best advocacy among Family counsel can be, and pledging to support the FLBA to the best of his ability during the choppy weather ahead.

The President spoke to Philip Cayford.   

Congratulations on your appointment, which you will know was an extremely popular one. 

"Thank you for your congratulations on my appointment. I am pleased to think that it was popular, and am determined to do my best for a beleaguered family justice system in very difficult times."

What, generally, do you see as the biggest problems facing the administration of Family Law within England and Wales today?

"The biggest problems are, I think, financial - but allied to the whole question of resources is the argument about how we go about doing things. Can we go on having long, adversarial private law disputes about contact? Should we be more economical in our use of experts in both private and public law cases, for example? I do not want to see family law turned into the preserve of the affluent. Take just one example; vulnerable people, who often lack the financial resources to litigate, need the court's protection from exploitation by their partners. Only family court orders can provide that protection."

How do you think our relations are likely to be with the new coalition Government? How much notice will (or can) the new Government take of Family Law problems (including the ongoing resources issue?)

"Judges work with governments, whatever their political persuasion. Everyone is being asked to make massive cuts. The Family Justice Review has survived the election and the impression I have gained is that the new government is well aware of the problems besetting the Family Justice System and is anxious to address them. On the other hand, the government must recognise that family law is important. People care most about their personal relationships, their children and their money.  Family law touches everyone at some point in their lives, usually when people are most vulnerable. Any government would ignore this at its peril.

"I have met the Minister with responsibility for Cafcass (Tim Loughton) and have corresponded with Jonathan Djanogly. I am looking forward to a constructive dialogue, and intend to be robust when necessary."

At a recent Bar conference on the future of the Bar it seemed to be accepted that many legal aid practitioners were now not earning the same as plumbers but significantly less. What effect do you think the existing (and likely future) legal aid cuts are having on the Family Bar?

"The legal aid cuts are very serious. Family Lawyers represent some of the most disadvantaged people in society. As I say, I am very anxious that the Bar should not become the preserve of the affluent. Furthermore, competent representation in family justice is very important. Family law requires skills not needed in other jurisdictions. Specialisation is crucial."

What are you able to say about the ongoing problems within Cafcass? 

"Sadly, I cannot say that as much progress has been made on this as I would like. I have made it clear that I am not going to renew the interim guidance and I am considering closely the discontinuance of the ‘duty guardian' scheme, which it seems, has not succeeded. It is also clear to me that the government is likely to invest heavily in the Family Justice Review, where Cafcass is high on the agenda. I therefore anticipate that there will not be a great deal of immediate change, and that the positive aspects of the Interim Guidance will need to be built upon. Given the published timetable of the FJR, we should be able to re-assess the position in the autumn, with a view to a root and branch revision, following final recommendations, in 2011. So watch this space."

In light of  a) your comments in Re D, b) the Washington Declaration c) the new research from Dr Marilyn Freeman and Professor Parkinson and now d) the comments of Mostyn J in Re AR, where are we now on international child relocation? Is it still a question of finding a rich or tenacious (or both) litigant to push the right case to the Supreme Court before any effective review of Payne v Payne can take place?

"As I said recently in Re D [2010] EWCA Civ 50 (which I am delighted to see that you have all read) there is a perfectly respectable argument for the proposition that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent. However, all relocation cases are (1) very difficult; and (2) highly fact specific. Re D was plainly not the case upon which to base a re-appraisal of Payne. Furthermore, as I also made clear in Re D, we operate a doctrine of precedent and it will be either for the government to change the law or for the Supreme Court to reconsider the issue in a suitable case. I do not think that a litigant would necessarily have to be either rich or tenacious to get to the Supreme Court, but a finely balanced case is likely to turn on the trial judge's exercise of discretion, with which it may be difficult to interfere."

The Law Commission is considering pre-nuptial agreements, but is there any other pressing issue that you believe it should look at? Do you believe, for example that s25 itself needs fundamental reconsideration?

"I am in favour of no fault divorce, and support cohabitants being given the right to make financial claims against each other. I suspect that the Law Commission has to have a long fuse. It may have sometimes to wait 10 or 20 years before a government catches up with it."

What were your early legal influences and why did you come to the Bar?

"I came to the law in order to earn my living. Law was very well taught at university and all the teachers seemed to regret being academics and not in practice. I still have difficulty understanding academic comment on some of my decisions! I came to the bar - as opposed to becoming a solicitor because I did not like the idea of instructing somebody else and then watching them make a pig's breakfast of a case. I would rather do it myself."

Is there any one person who has particularly inspired you during your life and if so, whom?

"The lawyer for whom I had the greatest respect was Roger Ormrod, although I hope that it is easier to appear in front of me."

What are your extra-curricular interests? (I know you used to be an active Refresher!)

"I collect, bind and restore books. I would happily spend the rest of my life doing so. I would also like to research Elizabethan cryptography, if time permits after I retire. It is kind of you to recall that I was a geriatric Refresher, who can claim to have played in the last game of the barristers against their clerks at the Oval."

What might you have done had you not come to the Bar? 

"I would have gone into publishing or the British Library."

What would you like your legacy to be (in due course?) 

"If I can leave behind a family justice system which is properly valued by outsiders, and which is rightly recognised as the equal to the other branches of the justice system I will be content. I greatly value the dedication and genuine altruism of all who work in the family justice system, and I hate to see them unjustly criticised by the ignorant or the tendentious. I have been kept going by the ideas which the system has generated, and I hope to have an inclusive Presidency which embraces change and throws up interesting and radical ideas."

Would you recommend the Family Bar today to a member of your family or to a bright young graduate looking for a career?   

"Yes, although I came into it by accident. But be aware. The young family lawyer will have many frustrations, and will not grow rich.  But he or she will have immense job satisfaction, and will have the real privilege of seeing humanity at both its best and its worst."